Citation Nr: 0405987
Decision Date: 03/05/04 Archive Date: 03/19/04
DOCKET NO. 03-08 428A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUES
1. Entitlement to an initial disability rating in excess of
30 percent for bilateral hearing loss.
2. Entitlement to an effective date earlier than May 24,
2001, for a grant of service connection for bilateral hearing
loss, currently evaluated as 30 percent disabling.
3. Entitlement to an effective date earlier than May 24,
2000, for a grant of service connection for tinnitus,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant & Appellant's Wife
ATTORNEY FOR THE BOARD
Michael T. Osborne, Associate Counsel
INTRODUCTION
The veteran had active service from June 1952 to June 1956.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 2002 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Newark, New Jersey, which granted the veteran's claims of
entitlement to service connection for bilateral hearing loss,
evaluating it as 30 percent disabling effective May 24, 2001
(the date of the veteran's informal service connection
claim), and entitlement to service connection for tinnitus,
evaluating it as 10 percent disabling effective May 24, 2000
(based on liberalizing regulations for evaluating tinnitus).
The veteran disagreed with the effective dates assigned to
both of these service-connected disabilities and also
disagreed with the 30 percent evaluation assigned to his
service-connected bilateral hearing loss in a statement
received at the RO in October 2002. In a statement of the
case issued to the veteran and his service representative in
April 2003, the RO concluded that no change was warranted in
the 30 percent evaluation assigned to the veteran's service-
connected bilateral hearing loss. The veteran perfected a
timely appeal with respect to the issue of entitlement to an
initial disability rating in excess of 30 percent for
bilateral hearing loss in April 2003. A personal hearing was
held at the RO in June 2003 on the claim of entitlement to an
initial disability rating in excess of 30 percent for
bilateral hearing loss. In a supplemental statement of the
case issued to the veteran and his service representative in
June 2003, the RO concluded that no change was warranted in
the 30 percent evaluation assigned to the veteran's service-
connected bilateral hearing loss.
Finally, the Board notes that this appeal is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC. VA will notify you if further action is required on your
part.
REMAND
At the outset, the Board observes that the Veterans Claims
Assistance Act of 2000 (hereinafter, "VCAA"), Pub. L. No.
106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5103, 5103A (West 2002)), redefined the obligations of VA
with respect to the duty to assist and includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
In December 2003 VA's General Counsel issued an opinion
regarding the applicability of the VCAA to an issue initiated
in a notice of disagreement. See VAOPGCPREC 8-03. In that
opinion the General Counsel held that, although VA must
notify a claimant of the evidence needed to substantiate a
claim on receipt of a complete or substantially complete
application, VA is not obligated to inform the claimant of
the evidence needed to support an issue that is initially
raised in a notice of disagreement if VA has already given
the section 5103(a) notice regarding the original claim. In
the instant appeal the RO did not inform the veteran of the
evidence needed to substantiate his original claim for
service connection for hearing loss, or the relative
responsibilities of the veteran and VA in developing that
evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002); 38 C.F.R. § 3.159(b) (2003). A remand in this case
is, therefore, required for compliance with the notice and
duty to assist provisions contained in the law. See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002);
38 C.F.R. § 3.159(b) (2003).
As a procedural matter, the Board also observes that, in a
statement received at the RO in October 2002, the veteran's
service representative notified VA that the veteran disagreed
with the effective date (of May 24, 2001) assigned to the
grant of service connection for bilateral hearing loss and
also disagreed with the effective date (of May 24, 2000)
assigned to the grant of service connection for tinnitus.
Under the laws administered by VA, a claimant initiates an
appeal by filing a timely notice of disagreement to contest
the result of an initial review or determination by the
agency of original jurisdiction. See 38 U.S.C.A. § 7105
(West Supp. 2002) ("notice of disagreement shall be filed
within one year from the date of mailing notice of the result
of initial review or determination...."); see also 38 C.F.R.
§ 20.302 (2003) ("a claimant...must file a Notice of
Disagreement with a determination by the agency of original
jurisdiction within one year from the date that the agency
mails notice of the determination to him or her..."). A
claimant's Notice of Disagreement "must be in terms which
can be reasonably construed as disagreement with" the
determination being appealed. See 38 C.F.R. § 20.201 (2003).
Based on a review of the October 2002 statement from the
veteran's service representative, the Board determines that
it is a valid notice of disagreement with respect to the
issues of entitlement to an effective date earlier than May
24, 2001, for the grant of service connection for bilateral
hearing loss and entitlement to an effective date earlier
than May 24, 2000, for the grant of service connection for
tinnitus.
Because the veteran filed a timely notice of disagreement
under 38 U.S.C.A.
§ 7105, appellate review of the RO's January 2002 rating
decision was properly initiated, and the RO was then
obligated to furnish him a statement of the case with respect
to the earlier effective date claims. See 38 U.S.C.A. § 7105
(West Supp. 2002); 38 C.F.R. § 19.26 (2003). See also
Hamilton v. Brown, 4 Vet. App. 528 (1993). Accordingly, both
the issues of entitlement to an effective date earlier than
May 24, 2001, for the grant of service connection for
bilateral hearing loss and entitlement to an effective date
earlier than May 24, 2000, for the grant of service
connection for tinnitus are remanded to the RO for the
issuance of a statement of the case and any further
development as may be necessary regarding these claims. See
Manlicon v. West, 12 Vet. App. 238 (1999).
The remanding of the issues of entitlement to an effective
date earlier than May 24, 2001, for the grant of service
connection for bilateral hearing loss and entitlement to an
effective date earlier than May 24, 2000, for the grant of
service connection for tinnitus must not be read as an
acceptance of jurisdiction over the same by the Board. The
Board may only exercise jurisdiction over an issue after an
appellant has filed both a timely notice of disagreement to a
rating decision denying the benefit sought and a timely
substantive appeal. See 38 U.S.C.A. § 7105 (West Supp.
2002); Roy v. Brown, 5 Vet. App. 554 (1993). The RO should
return these issues to the Board only if the veteran perfects
an appeal in full accordance with the provisions of 38
U.S.C.A. § 7105.
Finally, the Board observes that, at the veteran's personal
hearing held at the RO in June 2003, he stated that his
bilateral hearing loss had worsened since his last VA
audiology examination. A detailed review of the veteran's VA
outpatient treatment records from the VA Medical Center in
East Orange, New Jersey, reveals that the veteran's hearing
was tested most recently at a November 2002 audiology
examination. Given the veteran's testimony at his personal
hearing about his worsening bilateral hearing loss, and
because the veteran's most recent hearing test was in
November 2002, the Board is of the opinion that, on remand,
the veteran should be scheduled for an updated VA audiology
examination to determine the current nature and severity of
his service-connected bilateral hearing loss.
Accordingly, this case is REMANDED for the following actions:
1. The RO should furnish the veteran and
his service representative a statement of
the case on the issues of entitlement to
an effective date earlier than May 24,
2001, for the grant of service connection
for bilateral hearing loss, and
entitlement to an effective date earlier
than May 24, 2000, for the grant of
service connection for tinnitus. The RO
should return these issues to the Board
only if the veteran perfects an appeal,
by filing a timely substantive appeal, in
full accordance with 38 U.S.C.A. § 7105
(West Supp. 2002).
2. With respect to the claim of
entitlement to an initial disability
rating in excess of 30 percent for
bilateral hearing loss, the RO must
assure compliance with the requirements
of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000), codified at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126 (West
2002) and its implementing regulations.
The RO's attention is directed to
Quartuccio v. Principi, 16 Vet. App. 183
(2002), pertaining to the amended version
of 38 U.S.C.A. § 5103(a), which requires
that the Secretary identify for the
veteran which evidence the VA will obtain
and which evidence the veteran is
expected to present.
3. The RO should make arrangements with
the appropriate VA medical facility(ies)
for the veteran to be afforded the
following examination: an audiology
examination to determine the current
nature and severity of the veteran's
service-connected bilateral hearing loss.
Send the claims folder to the examiner(s)
for review. Request that this
examination include all standard studies
and tests. All examination findings
should be set forth.
4. Then, the RO should re-adjudicate the
veteran's claim of entitlement to an
initial disability rating in excess of 30
percent for bilateral hearing loss in
light of all relevant evidence and
pertinent legal authority. The RO must
provide adequate reasons and bases for
its determinations, addressing all issues
and concerns that were noted in this
REMAND.
5. If the benefits requested on appeal
with respect to the evaluation assigned
to the veteran's service-connected
hearing loss are not granted to the
veteran's satisfaction, the veteran and
his representative should be furnished a
Supplemental Statement of the Case and be
given an opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The Board intimates no
opinion as to the ultimate outcome of this appeal.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
KATHY A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).